Friday, April 22, 2011

At the beginning of this month the Maa-nulth Final Agreement, negotiated as part of the British Columbia Treaty Process, came into effect. Looking at the contents of this agreement, I thought it might be helpful to consider how the agreement compares with settlements reached under the Treaty of Waitangi Settlement Process. I’ve used the Ngāti Porou Deed of Settlement, signed at the end of last year, as a relatively recent point of comparison. Though there are many factors which distinguish the situation of the Maa-nulth nations from that of the hapu of Ngāti Porou, even a general comparison reinforces a number of concerns I have about the durability of Treaty of Waitangi settlements.

The five Maa-nulth First Nations are Ucluelet First Nation, Huu-ay-aht First Nations, Toquaht Nation, Ka:’yu:’k’t’h’/Che:k’tles7et’h’ First Nations and Uchucklesaht Tribe. The traditional territories of these nations are situated along the west coast of Vancouver Island and altogether this agreement will cover about 2,000 people. I have not been able to ascertain the precise land area that would have been encompassed by the traditional territories of these nations, but my rough calculations based on the maps provided by the nations in the negotiating process suggest that their traditional lands covered approximately 400,000 hectares.

Ngāti Porou are also recognised as having a traditional territory of approximately 400,000 hectares, though in most other respects the two groups are very different. The 2006 census figures show that over 70,000 people affiliate to Ngāti Porou – a population 35 times larger than the five Maa-nulth Nations combined.

Both the Maa-nulth Final Agreement and the Ngāti Porou Deed of Settlement are detailed documents which provide for a range of mechanisms designed to implement a new relationship between the indigenous community and the state. The Maa-nulth agreement is intended to reflect an agreed relationship with the state for the very first time while the Ngāti Porou settlement aims to give effect to the rights and obligations of the relationship established by the Treaty of Waitangi. These different contexts are important and do give rise to significant differences in process and substance, but perhaps not to the extent one might expect.

In any case, even though it makes for a relatively crude comparison, we can consider the total dollar value of these agreements and the amount of lands being returned. These will both be important factors contributing to the sustainability of community infrastructure and, ultimately, the durability of the agreements. The land package in the Maa-nulth Final Agreement consists of approximately 24,500 hectares. Ngāti Porou will have approximately 6,000 hectares returned to them. Even though the Maa-nulth nations are located on the relatively small Vancouver Island, and not the vast lands of mainland British Columbia, it might still be argued that, in general, the amount of land the state has at its disposal in Canada is much greater than the amount of land that could be used for Treaty of Waitangi settlements in New Zealand. Indeed, that is no doubt part of the reason why the Maa-nulth nations are receiving a much greater percentage of their traditional lands as part of their agreement.

In terms of the monetary component of these agreements, the Ngāti Porou settlement includes financial redress of $90 million (NZ) and the Maa-nulth agreement provides for capital transfers of a similar amount (approximately $70 million CDN which, at current exchange rates, is about $90 million NZ). I should note that the total value of the Ngāti Porou settlement is cited as $110 million (NZ) but that includes the value of properties returned as part of their ‘cultural redress’. As far as I can ascertain, the value of the capital transfers in the Maa-nulth agreement do not include the value of returned land. The Maa-nulth agreement also provides for various other forms of ongoing funding, though those other funding streams generally reflect things such as contracts for provision of social services that are not dealt with in the settlement of historical Treaty of Waitangi claims.

Given that the traditional territories of both communities cover a comparable land area, it might seem logical that the value of these agreements are roughly similar. However, when we recall that the Maa-nulth Nations have a population of 2,000 and Ngāti Porou has a population of over 70,000 it is clear that the Maa-nulth agreement is much more valuable when considered on a per-capita basis. It is, of course, arguable that present day population size ought not to be the only, or indeed the predominant, factor in determining the financial value of the Treaty of Waitangi settlements. I agree that the primary consideration in the historical Treaty claims settlement process ought to “what will provide a just resolution of these grievances?”. Having said that, it is a narrow vision of justice that would not take account of the value of the settlement pre head of population. Furthermore, if the settlement of historical Treaty of Waitangi claims is going to contribute to broader goals of reconciliation, then such settlements must provide a sufficient economic base for settling groups to establish a sustainable tribal infrastructure. If these settlements do not provide a sufficient base for tribal infrastructure to meet the needs of its population over more than a single generation, these settlements will not be “full and final” and will not assist with a wider process of reconciliation.

I think there are significant flaws in both the British Columbia Treaty Process and the Treaty of Waitangi Claims Settlement Process, some of which I have referred to previously. There are also numerous differences in law and policy, historically and today, between the Canadian and New Zealand jurisdictions, so any comparisons must be heavily qualified. Nevertheless, a quick (and admittedly, fairly rough) comparison between the Maa-nulth and Ngāti Porou agreements reinforces the need to consider the justice of these agreements from multiple angles if we wish them to be durable and to contribute to broader objectives of reconciliation.

Ahi-kā-roa

Ahi-kā-roa literally means "the long-burning fires". It is a Māori concept that encapsulates the idea that decision-making authority and rights associated with land are maintained through the connection to that land and the fulfillment of obligations in relation to it.

About Me

I am of Ngāti Kahungunu and Te Aitanga-a-Māhaki descent. I am a lecturer at the Faculty of Law, Victoria University of Wellington. My primary research interests relate to the Treaty of Waitangi and indigenous legal traditions. Before joining the faculty in 2006, I worked in a number of different roles at the Waitangi Tribunal, Māori Land Court, and the Office of Treaty Settlements. I have recently completed a PhD through the University of Victoria, British Columbia. My dissertation is entitled 'The Treaty of Waitangi Settlement Process in Māori Legal History'. I am the Co-Editor of the Māori Law Review